Byron Johnson v. Kaija Freborg, A21-1531, Supreme Court, September 20, 2023

• Court: Supreme Court of Minnesota
• Decided: September 20, 2023
• Docket: A211531
• Status: Published

Opinion

STATE OF MINNESOTA

IN SUPREME COURT

A21-1531

Court of Appeals Chutich, J. Dissenting, Gildea, C.J., Anderson, Hudson, JJ. Byron Johnson,

Respondent,

vs. Filed: September 20, 2023 Office of Appellate Courts Kaija Freborg,

Appellant.

________________________

Scott. M. Flaherty, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota; and

John G. Westrick, Samuel A. Savage, Savage Westrick, PLLP, Bloomington, Minnesota, for respondent.

Alan P. King, Daniel E. Hintz, Natalie R. Cote, Goetz & Eckland P.A., Minneapolis, Minnesota, for appellant.

SYLLABUS

1. Analysis of the totality of the circumstances—including the content, form,

and context of defendant’s Facebook post that accused the plaintiff in this defamation

action and two other dance instructors of sexual assault—shows that her speech involved

a matter of public concern, namely, sexual assault in the context of the #MeToo movement.

1 2. Because a genuine issue of material fact exists as to the truth or falsity of

defendant’s alleged defamatory statement, we cannot resolve the issue of actual malice

upon appeal; accordingly, we remand the matter to the district court for trial on the issues

of veracity and actual malice.

Reversed and remanded to the district court for further proceedings.

OPINION

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a

private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin

Cities dance community of varying degrees of sexual assault. Johnson was one of

Freborg’s dance teachers, and the two previously had a casual sexual relationship that

lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public

concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The

court of appeals further held, in a divided opinion, that because the dominant theme of

Freborg’s post involved a matter of private concern, Johnson was not required to prove

actual malice to recover presumed damages. The court of appeals remanded the case to

the district court for further proceedings.

2 We granted Freborg’s petition for review on whether her statement involved a

matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern,

namely, sexual assault in the context of the #MeToo movement, her statement is entitled

to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s

speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and

remand the case to the district court for further proceedings to determine the veracity of

Freborg’s post and, if the post is found to be false, whether the making of the post meets

the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local

university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many

of their sexual encounters were consensual. She claims, however, that not all of their

interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and

put it down his pants onto his genitals” without her consent. This allegation, and its

veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and

continued to contact one another only in the context of dance lessons; these dance-related

3 communications lasted until sometime in 2017. By 2020, they had not spoken to one

another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook

page:

After receiving feedback about her message, Freborg clarified in the post’s

comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape]

has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude

allegations of rape:

1 Johnson alleges Freborg’s post reached thousands of Facebook users, many of whom were not Facebook “friends” with Johnson or Freborg. 4 Johnson posted a response on Freborg’s public Facebook thread:

5 Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them,

and they were publicly “shared” 16 times.

Some of the response to Freborg’s posts was positive. Commenters told her that

she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining

their own negative experiences in the Twin Cities dance community. For example, one

commenter noted that Freborg was “not the only one of us who has been sexually assaulted

in the dance world.” Another commented that she does not “dance in certain spaces within

the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.”

Other commenters, however, came to Johnson’s defense. One person, for example,

explained that people should “wash [their] laundry at the COURTS” and only come

forward on social media “after the person [accused of sexual assault] is PROVEN guilty.”

Another accused Freborg of slander and criticized her unwillingness to engage with

Johnson’s response to her posts.

In response to the varied comments to her posts, Freborg later explained that she

“did this for the safety of other women, and really to show that we as women can disrupt

6 the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original

post was published, Freborg deactivated her Facebook account, removing the post and its

thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and

edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson

argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was

true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her

speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The

#MeToo movement was conceived to allow women to share their experiences of sexual

assault and harassment and to seek accountability from their abusers. 2 The hashtag collects

the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in

rapidly increasing awareness around sexual misconduct,” and that researchers have opined

that “social movements [like #MeToo] can rapidly affect the norms for behavior by

changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance

community. She submitted a blog titled “Dance Predators” that provided suggestions on

2 Freborg submitted articles in support of her summary judgment motion showing that the movement gained international attention—particularly on social media—in 2017 during the Harvey Weinstein sexual abuse scandal in Hollywood. 7 how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the

predatory behavior of three prominent international dance instructors in the global dance

community.

Johnson also moved for partial summary judgment on the issues of liability and

actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public,

concern because even if the #MeToo movement qualifies as a matter of public concern,

Freborg’s specific posts were personal in nature. He asserted that the sources Freborg

relied upon about the dance community were insufficient to show that her speech involved

a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with

actual malice because she knowingly posted false information. He asked the district court

for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court

found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that

the posts were too personal in nature to be a matter of public concern, specifically relying

on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted

that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the

district court found that—even if Freborg’s speech was false—Johnson failed to show

8 actual malice, which is required to recover presumed damages for defamatory statements

that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of

Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided

opinion, the court further held that Freborg’s speech was a matter of private, not public

concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923

n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in

part, dissenting in part). Considering the content, form, and context of the speech, the

dissent reasoned that Freborg “made the post as part of a now-global conversation about

the prevalence of sexual harassment and assault and the need to shine light on once-secreted

personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved

a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and

agrees that a remand to the district court is appropriate on this issue. Consequently, we do

not address the veracity issue further here and limit our analysis to the claim that her speech

involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v.

Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary 9 judgment is appropriate, we must determine “whether the district court erred in its

application of the law to the facts.” Id. (citation omitted) (internal quotation marks

omitted). In addressing whether a statement involves a matter of public concern, federal

courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of

public concern de novo. We also review de novo the determination of “[w]hether evidence

in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we

start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and

defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner,

929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev.,

668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal

behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the

plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed

damages under this standard.

10 Like all laws regulating speech, however, “the doctrine of defamation per se

cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of

protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on

matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of

public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private

plaintiff may not recover presumed damages for defamatory statements involving a matter

of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d

at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or

not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks

omitted). Freborg contends that this heightened standard applies to her speech because her

posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the

circumstances.” Id. at 881. In particular, “courts should consider the content, form, and

context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate

all the circumstances of the speech, including what was said, where it was said, and how it

was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the 11 circumstances of the speech, we must make “an independent examination of the whole

record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor

of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner,

929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use

of his distinct last name by his ex-wife, the speech essentially accused him of domestic

violence. Id. at 872. We recognized that “as a general proposition,” speech relating to

domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject

of the speech, we explained that “the form and the context of the speech must also be

considered, as well as any other relevant factors.” Id. Because neither the district court

nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the

challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating

to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse

available to the abused child” were “certainly of public concern”). But Maethner clearly

instructs us that no per se rule applies to suggest that statements about sexual abuse (or any

other crime) are always matters of public concern. Instead, we must, on a case-by-case 12 basis, apply the totality of the circumstances test and balance the content, form, and context

of the speech, as well as any other pertinent factors, to determine whether speech involves

a purely private matter or is a statement about a matter of public concern intended to

influence public discussion about desired political or social change. Balancing the totality

of the circumstances of the Facebook posts here, we conclude that, although the speech

involved personal aspects, the predominant theme of Freborg’s speech involved a matter

of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the

entire thread of the Facebook postings when determining whether “a forbidden intrusion

on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of

sexual assault by three dance instructors in the local Twin Cities dance community. In her

first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly]

assaulted, and/or raped” by three specific dance instructors, including Johnson. She

amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again

including Johnson. 3 The last line of the original and amended posts stated, “If you have a

problem with me naming you in a public format, then perhaps you shouldn’t do it.”

3 Freborg’s amended post stated that she changed the wording of her original post based on feedback from a good friend that the word “rape” could be a trigger word. She also acknowledged in the Facebook thread and in private Facebook messages that Johnson never raped her. 13 In evaluating whether these personal portions of Freborg’s posts—the identification,

tagging, and admonishing of the three instructors—make the speech a private affair, we

must weigh these statements against the remaining text. First, the original and amended

post prominently begin with this statement: “Feeling fierce with all these women dancers

coming out.” Then, before listing the varying degrees of sexual assault that she says she

experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was

encouraged by other women speaking out about sexual assault in the dance community to

reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and

the broader #MeToo movement. This social movement is characterized by survivors of

sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of

Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of

the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism,

88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want

is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells

others that they are not alone and that they are understood. Such affirmations can be

healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made

the posts “for the safety of other women” and to show how “women can disrupt the status

quo”—suggests that her posts were an attempt to raise awareness for other women, 14 including women in the dance community, and inspire social change. These three factors,

considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring

at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial

and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s

reply to his comment on her posts, show that the content of Freborg’s speech was not to

add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance

community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the

movement to mask a purely private attack on his character. He cites the Supreme Court’s

decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in

weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and

the soldier “that might suggest Westboro’s speech on public matters was intended to mask

an attack on Snyder over a private matter”). Here, however, two considerations cause us

not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private

concern because she was a “jilted former lover, who waited five years before publicly

attacking Johnson.” First, the passage of that many years between the end of the parties’

relationship, which Johnson described as a “casual sexual relationship,” and the post 15 suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do

with Freborg’s previous relationship with Johnson, and more about speaking up about

alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of

Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the

leader of the Westboro Baptist Church could receive First Amendment protection when he

organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for

9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder,

562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import”

including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to

the dead soldier and his family. Id. The Court concluded, however, that the few personal

messages did “not change the fact that the overall thrust and dominant theme of Westboro’s

demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing

broader public issues, we reach a similar conclusion about content: even though Freborg

named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in

the dance community, a matter of public import.

16 The dissent takes a narrow view of a “matter of public concern,” essentially

limiting those matters “to self-government,” “government officials,” or “government

performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v.

Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five

decades and the Supreme Court’s broader view of matters of public concern. According

to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly

considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and

of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted

in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of

4 The dissent suggests that because Snyder involved a claim for intentional infliction of emotional distress, the public concern test from Snyder does not apply in the context here, a defamation action. But we have previously articulated the exact same public concern test from Snyder in a defamation action: “that ‘[s]peech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community’ or when the subject of the speech is ‘of general interest and of value and concern to the public.’ ” Maethner, 929 N.W.2d at 880 (quoting Snyder, 562 U.S. at 453). We explained that “[t]he facts of Snyder are particularly helpful in illustrating how to analyze whether statements are ones of public concern” and cited Snyder for the articulation of “ ‘some guiding principles’ ” for distinguishing between a public and a private concern. Id. (quoting Snyder, 562 U.S. at 452). And we specifically explained that these guiding principles apply “in determining the constitutional protections afforded to speech in tort actions,” without distinguishing between actions for intentional infliction for emotional distress and other tort actions like defamation. Id. We are not alone in relying on Snyder to guide the public concern determination in tort actions generally. For example, in considering whether speech qualified as a matter of public concern, the Second Circuit explained that the Snyder public concern test applies to “any tort alleging reputational harm,” “regardless of the claim at issue, be it defamation, intentional infliction of emotional distress, or negligence.” Dongguk Univ. v. Yale Univ., 734 F.3d 113, 129 (2d Cir. 2013) (emphasis added); see also, e.g., Cousins v. Goodier, 17 public concern is within “the core of First Amendment protection . . . to assure the

unfettered interchange of ideas for the bringing about of political and social changes

desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation

marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader

conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v.

Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law,

283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)). 18 found that a post on a public Twitter account that included pictures of a person and

explicitly accused him of repeated sexual harassment and rape qualified as a matter of

public concern. Id. at 777. In weighing the totality of the circumstances, the district court

found that “[t]he content of the speech here addressed harassment and rape, and more

specifically, the subject of women coming forward to share their experiences in this

regard.” Id. The court therefore concluded that the speech was entitled to the actual malice

standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the

broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story,

hoping to raise awareness about the prevalence of sexual assault, to keep other women safe,

and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further

supports a conclusion that Freborg’s posts were on a matter of public concern. 6 Freborg

disseminated her speech on her Facebook account, making her post publicly available to

anyone. The use of the internationally recognized hashtag for the #MeToo movement

allowed her message to be disseminated publicly and broadly on Facebook. Here, the

6 Notably, at oral argument before us, Johnson agreed that the form of Freborg’s speech pointed to the posts being a matter of public concern, although he noted that no one factor is dispositive. 19 #MeToo hashtag does what a public account, blog, or journal dedicated to these issues

would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina,

582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The

Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice

that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg

specifically chose this modern public square as a way for her message “to reach as broad a

public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved

a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to

the end of a social media post is not in and of itself determinative of whether the speech

involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. 7 Importantly, when courts are reviewing the

use of a specific hashtag, they should consider all other relevant factors, including content

7 Just as the use of a hashtag does not automatically transform a matter into one of public concern, the naming of a specific person does not mechanically characterize the matter as one of private concern. Such a binary approach would ignore the crux of the inquiry—whether balancing the totality of the circumstances shows that a matter is one of public concern. 20 and context. 8 A hashtag, even the globally recognized hashtag at issue here, can never

provide blanket First Amendment protections. The critical question will remain: based

upon the totality of the circumstances in light of the record as a whole, does the speech

involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of

holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however,

that it engendered “no discussion about how to engage in democratic self-governance,”

which he maintains would help support Freborg’s theory that the context of her post was

intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the

claims in her posts by citing their own negative experiences, while others were critical of

the posts and how Freborg chose to speak about what happened to her. These reactions

facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and

unfettered discussion in the thread following the initial post supports the conclusion that

the form and context of this speech makes this speech a matter of public concern, rather

than a purely private matter.

8 Here, for example, the hashtag at issue is at the heart of the #MeToo movement— so much so that the hashtag itself is directly in the name of the movement and critical to the dissemination of its message and goals. 21 As discussed above, the context of the #MeToo movement is a key factor in our

analysis. The #MeToo movement has had a direct impact on society and how communities

address sexual assault across industries. Data shows, for example, the number of sexual

harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism,

88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those

who commit harassment or assault are now more likely to be held responsible and victims

are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. 12 (Sept. 29, 2022). And

Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating

to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand,

523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant

circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public

concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that

the publication of workplace-related #MeToo allegations involved a matter of public

concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding

that there was a prima facie showing that the publication of workplace-related #MeToo

allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. 9, 2021) (finding that a defendant’s

22 LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a

purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations

happening about predatory behavior in the dance community, including a series of similar

posts made on and around the time of her own July 14, 2020 post. Her statements fit well

within the context of a legitimate social movement. 9

Johnson cites other contextual factors to show that Freborg’s posts are not a matter

of public import. As noted above, he contends that his previous relationship with Freborg

demonstrates that the nature of her speech was private. But the mere existence of a

previous relationship is not a dispositive factor in assessing the nature of the speech, and it

does not negate the importance of speaking out against sexual assault in society. Many

victims who come forward to speak about their experiences of sexual assault often have a

preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation

lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. 12, 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that

9 Noting its concern that the #MeToo movement can be manipulated to launch false accusations against innocent persons, the dissent references striking historical examples of the shocking violence that resulted from false interracial allegations of inappropriate behavior. It also references a more current case of false accusations, where the person making the false accusations faced criminal consequences. It is true that false accusations of sexual assault can cause serious harm to the person accused. It is also true that research shows that these types of false accusations of sexual assault are rare. Caitlin K. Cervenka & Christine M. Crow, Lawyering in the #MeToo Era, 109 Ill. B.J. 30, 31 (2021) (“[W]hile false allegations of sexual violence do occur, they are rare; studies have shown that the rate of false allegations is between 2 and 10 percent.”). 23 one in every three women will experience violence, rape, or stalking by an intimate partner

in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and

their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the

account used to tweet about Fredin, Freborg had no prior history speaking out about the

#MeToo movement or sexual abuse and harassment generally. We do not give this

contention much, if any, weight. To hold that victims of sexual assault can only speak out

about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the

importance of and protecting speech that addressed “harassment and rape, and more

specifically, the subject of women coming forward to share their experiences in this

regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged

victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy,

that would discourage any person not already engaged in advocacy work from telling their

story about what happened to them and adding their voice to the desire for social change

because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional

standard, the speech of victims of sexual assault may well be chilled. Given the potential

threat and costs of defending a defamation lawsuit, many victims of sexual assault may 24 choose not to speak out at all. See Shaina Weisbrot, The Impact of the #MeToo Movement

on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has

led to more defamation lawsuits, especially if the accused has significant power or

resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to

show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of

public import. There, we held that the dispositive inquiry regarding the availability of

presumed damages “is not on the status of the defendant as a media or nonmedia defendant”

but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of

the public’s interest” and stressed “the importance of journalistic freedom in investigating

and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal

quotation marks omitted). We then noted that dissemination of statements in the news

media is “one of many relevant factors in determining whether the statements involve a

matter of public concern.” Id. Our discussion in Maethner therefore suggests that this

non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and

that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no

news media reported Freborg’s posts is not a decisive factor in assessing the public import

of the speech. 25 After considering the context of Freborg’s posts, we conclude that this factor shows

that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of

the whole record, we conclude that the overall thrust and dominant theme of the posts

involved a matter of public concern. We therefore hold that Freborg’s speech is subject to

heightened protection under the First Amendment. Accordingly, to prevail on his

defamation claim for presumed damages, Johnson must show that Freborg’s posts not only

were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule

on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her

petition for review. Consequently, the parties agree that, if we conclude that the challenged

speech here involved a matter of public concern, we should remand the case to the district

court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the

following reasons.

The district court concluded as a matter of law that the record contained insufficient

evidence of actual malice. But the court of appeals held that a genuine issue of material

fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and

the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech

was false, sufficient evidence may allow the jury to further find that Freborg made the 26 statements with actual malice. 10 We therefore reverse the district court’s ruling on actual

malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and

remand the case to the district court for further proceedings.

Reversed and remanded.

10 To succeed in a defamation case, a plaintiff must always prove that a statement is false. We note that when the alleged sexual abuse involves a private interaction between two people, if the plaintiff shows that the allegations were false, the constitutional actual-malice standard may not pose much of an additional burden. This is so because the standard requires that the statement be made with the “knowledge that it was false or with reckless disregard of whether it was false or not.” Maethner, 929 N.W.2d at 873 (citation omitted) (internal quotation marks omitted). 27 DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex,

sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v.

Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability

without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is

whether Freborg’s speech is so central to the purpose of the First Amendment that it is

entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my

view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the

constitutional actual malice standard protects. Accordingly, I dissent.

Historically, defamatory speech, such as allegations of criminal behavior akin to

those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory

comments were, by definition, not protected speech under the First Amendment.”). But in

D-1 New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the

reputational interests protected by state libel law must yield when in conflict with the

central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co.,

367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The

New York Times Court adopted the actual malice standard to strike a balance between

reputational interests and First Amendment protections. 1

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the

heightened First Amendment protection of the constitutional actual malice standard. I

disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin,

367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of

the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case

in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official

conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that

protection—public officials may not recover damages for a defamatory falsehood relating

to their official conduct unless they prove that the statement was made with “actual

malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or

“central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch,

Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the

common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in

New York Times was the connection of the speech to principles necessary to a successful

democracy, such as the citizenry’s ability to comment freely on the performance of their

government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing

whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue

here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v.

Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3 grounded in commentary about government performance. See Dun & Bradstreet v.

Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in

Gertz “involved expression on a matter of undoubted public concern” because the article

questioned whether a prosecution of a police officer was part of a Communist campaign to

discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing

compensation to people whose reputations have been harmed by defamation, and that that

interest needed to be balanced against competing First Amendment considerations to

ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in

compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The

Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the

States may define for themselves the appropriate standard of liability for a publisher or

broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the

States may not permit recovery of presumed or punitive damages, at least when liability is

not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet

involved only private, nonmedia parties: the plaintiff was a construction contractor and

D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for

bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to

speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and

punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate

the First Amendment when the defamatory statements do not involve matters of public

concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without

proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the

performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe,

Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual

malice to recover; for the latter, state law governs. And for speech to be a “matter of public

concern” sufficient to warrant application of the constitutional actual malice standard, that

speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the

concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that

government may be responsive to the will of the people and that changes may be obtained

by lawful means, an opportunity essential to the security of the Republic, is a fundamental

principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to

understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as

primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too

narrowly. For support, the majority essentially equates matters of interest to the public to

those of public concern. Supra at 17. But the Supreme Court has already concluded that

when the issue is the application of the constitutional actual malice standard, there is a

dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of

applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and

concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for

the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated”

the view that the “New York Times privilege should be extended to falsehoods defamatory

of private persons whenever the statements concern matters of general or public interest.”

D-6 Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test

for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a

matter of interest to the public.”). Time, Inc. involved a news magazine article that included

reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof

of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J.,

concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and

self-government is speech on a matter of public concern for purposes of the constitutional

actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner,

929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp.,

544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public

concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7 society, or the government’s response to crime. Rather, she made a specific accusation of

criminal conduct on Facebook—that a person she identified by name sexually assaulted

her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier,

826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified

person committed sexual assault was not a matter of public concern for First Amendment

purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s

speech on website he created where he alleged that his uncle sexually abused him was not

a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook

post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin,

367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo

movement related to social change. I acknowledge the important contributions the MeToo

movement has made to our society. But this case is not about the MeToo movement; it is

about a Facebook post where Freborg accused Johnson of sexual assault and then included

“#MeToo.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the

majority cannot connect Freborg’s post to any particular change in statute, nor do the

involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8 changes to federal law cited by the majority—changes that concern settlement, arbitration,

and nondisclosure—even apply to this case. The focus of those changes is apparently on

workplace sexual assault and harassment, and has nothing to do with sexual violence

committed at a private party between people with a personal relationship who met through

a hobby. 4

The majority also supports its focus on the importance of the MeToo movement

generally with statistics that show the prevalence of sexual violence and domestic abuse

against women. Supra at 22–24. This reliance on statistics and the MeToo movement

generally reveals a values-based approach to applying the First Amendment that is not

consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of

their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the

vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. 4 (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence.

D-9 3.

Snyder, a case about intentional infliction of emotional distress—not defamation—

does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632

(6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that

Snyder was of limited application to defamation cases). 5

In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of

emotional distress will not lie in the face of a First Amendment challenge when the

allegedly distress-causing conduct is speech about a matter of public concern. Speech

intended to inflict emotional distress does not fall into the category of speech that was

5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id.

D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See

Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action

weigh more heavily here than in Snyder, and the First Amendment interest in protecting

speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the

content, form, and context inquiry is “to strike a delicate balance between the State’s

interest in providing redress for citizens claiming reputational injury and the free speech

protections the First Amendment provides”).

Another important distinction between defamation and intentional infliction of

emotional distress also influenced the Court’s analysis in Snyder. An element of

intentional infliction of emotional distress is the outrageousness of the conduct. But

outrageousness can have important value to speech, and permitting liability based on the

“outrageousness” of speech permits juries to discriminate on speech based on its content

or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is

a highly malleable standard with an inherent subjectiveness about it which would allow a

jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis

of their dislike of a particular expression.”) (citation omitted) (internal quotation marks

omitted)). The Court found the risk of chilling speech based on a malleable standard of

outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting,

and even outrageous, speech in order to provide adequate “breathing space” to the

freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312,

322 (1988)). In other words, it was important to the Court’s analysis that the

D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a

jury verdict on the basis of jurors’ opinions and subjective judgments.

That risk is much lower in a defamation case. In a defamation case, a jury will

consider the content of the speech only to evaluate its truth or falsity. Unlike the

intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot

impose liability based on their own subjective judgments about the outrageousness of the

speech. 6

Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder

that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder.

562 U.S. at 460. The case did not even discuss the constitutional actual malice standard,

6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance.

D-12 and the majority is unable to explain how a case that does not even mention the standard

compels the conclusion that the standard applies here. 7

4.

Even though Snyder cannot compel the result here, we have recognized that

analyzing the form, content, and context of the speech, as the Court did in Snyder, can be

a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881.

The “form” asks where the speech occurred. The parties agree that the speech here

occurred on a social media platform that was publicly viewed by many people, and that the

use of a hashtag made the post more accessible to the public. 8 The fact that the speech was

made in a “modern public square” is a relevant consideration in assessing whether the

speech is deserving of First Amendment protection. See Packingham v. North Carolina,

582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue

in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech

did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at

457.

7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. 8 The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form.

D-13 ii.

Turning next to the “content” of Freborg’s Facebook post, I conclude that the

“overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of

sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies

Johnson and two others by name, accuses them of sexual violence, and speaks directly to

them in her post. She also “tags” Johnson in the post, which made sure that her post would

be linked to him through his own Facebook presence. By tagging Johnson in the post,

Freborg further confirms that Johnson—and not some broader societal issue—is the target

of her speech.

But, according to the majority, the thing that separates Freborg’s Facebook post

from any other speech accusing another of sexual assault is that Freborg included #MeToo

(and to a lesser extent, #DancePredators), which shows that she intended to participate in

a hashtag-based social movement. 9 I disagree.

While use of a hashtag makes the post available more broadly to the public, it does

not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but

the post made no mention of government policy changes or systemic problems. Moreover,

the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

9 The majority also states that “attaching a hashtag—even the well-recognized #MeToo . . . is not in and of itself determinative of whether the speech involves a matter of public concern.” But this characterization misrepresents the majority’s analysis. The only thing the majority points to as connecting Freborg’s post to a movement is #MeToo, and the matter of public concern that the majority cites to is “sexual assault in the context of the #MeToo movement.” In other words, the matter of public concern is the MeToo movement and the connection to the MeToo movement was Freborg’s use of #MeToo. So it seems that in this case at a minimum, the use of a hashtag was determinative.

D-14 individual defendant in Maethner, Freborg did not include generalized education about

crime, a general call to action, or highlight her work with an advocacy organization relevant

to the MeToo movement. See Maethner, 929 N.W.2d at 871–72 (describing posts).

Instead Freborg focused on allegations of criminal conduct against her, stating “I’ve been

gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following

dance instructors . . . ” Johnson is specifically identified by name and Freborg accuses him

of sexual violence against her. Freborg even speaks directly to Johnson and the other

alleged perpetrators, saying, “If you have a problem with me naming you in a public format,

then perhaps you shouldn’t do it.” (Emphasis added.) Freborg’s own words make clear

that the overall thrust of her speech was to call out private people for private behavior.

iii.

Finally, I consider the context of Freborg’s post. The context of Freborg’s post is

the subject of much debate in this litigation. The majority places Freborg’s post in the

context of the MeToo movement. The majority acknowledges that Freborg and Johnson

had a prior personal relationship but dismisses that because the relationship ended years

earlier, and so, the majority concludes, Freborg’s intent was not to level a “personal attack”

against Freborg. See Snyder, 562 U.S. at 455.

While I agree with the majority that parts of Freborg’s speech are connected to the

MeToo movement in the sense that she included #MeToo in her post, the context of her

post was personal. The record reflects no history from Freborg of speaking out against

sexual violence. She and Johnson knew each other through the dance community, which

Freborg’s counsel admitted during oral argument was a “hobby.” Freborg’s post does not

D-15 implicate Johnson’s public or workplace conduct, but his conduct at a private party. And

Freborg and Johnson had a prior personal relationship. 10 In this litigation, Freborg asserted

that at various times during their relationship Johnson requested to have unprotected sex,

then had sex with other women after they agreed to be monogamous, gave Freborg a

sexually transmitted disease, blamed Freborg for giving him a sexually transmitted disease,

laughed at Freborg, called her dumb, and suggested she “made it all up in her head.”

Regardless of whether the purpose of Freborg’s post was to mount a “personal attack” or

to participate in the MeToo movement, there is an undeniable personal element to the

Facebook post at issue here, and the personal nature of the dispute permeates this litigation.

Moreover, even accepting that Freborg’s post occurred in the context of the MeToo

movement, her post is different from the protest in Snyder. In Snyder, the speech at issue

10 I do not “mechanically characterize the matter as one of private concern” based on the nature of Freborg and Johnson’s relationship. Instead I consider it a factor in the totality of the circumstances analysis that the First Amendment commands. Because this is a totality of the circumstances analysis, I agree with the majority that “the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech.” And I acknowledge that sexual violence often occurs between people with preexisting relationships. But the fact that perpetrators of sexual violence often have relationships with their victims does not mean that we should ignore the personal relationship between Freborg and Johnson in our analysis of whether the speech was on a matter of public concern in a defamation case. The existence of a prior relationship, while perhaps commonplace in this specific type of defamation case, is still important to consider in our analysis. We must consider all of the facts—this is a balancing test that weighs First Amendment interests against the State’s interest in providing a remedy for damage to reputation. See Gertz, 418 U.S. at 341 (“The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, . . . the individual's right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.’ ” (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring opinion))).

D-16 was the entire protest. Snyder’s father sued the protest organizer, the participants of the

protest, and the Westboro Baptist Church for the protest. 11 Snyder, 562 U.S. at 448–49

(noting that the Westboro Baptist Church was the defendant, and that the church

“frequently communicates its views by picketing”). If the MeToo movement is an online

protest, then the proper parallel for the Westboro Baptist Church’s protest is the entire

MeToo movement—Freborg’s individual post is akin to one protester holding just one sign.

The Snyder court even suggested that some of the individual signs might be private speech

if they were viewed standing alone. See Snyder, 562 U.S. at 454 (“[E]ven if a few of the

signs—such as “You're Going to Hell” and “God Hates You”—were viewed as containing

messages related to Matthew Snyder or the Snyders specifically, that would not change the

fact that the overall thrust and dominant theme of Westboro's demonstration spoke to

broader public issues.” (emphasis added)).

The context of the speech is also different from Richie and Maethner, which were

cases involving media or advocacy organizations. Freborg, in contrast, is not a member of

the media and she did not post on a public Facebook page for an advocacy organization

with a mission to help victims of domestic violence. She is a private person posting on her

personal Facebook page. See Richie, 544 N.W.2d at 26 (noting that the defendants were

members of the media); Maethner, 929 N.W.2d at 871 (involving speech by an advocacy

organization).

11 In its discussion of Snyder v. Phelps, the majority suggests that only the leader of the Westboro Baptist church, the man who organized the protest, was a party to the lawsuit. But Snyder sued the leader, his daughters (who participated in the protest), and the church. See Snyder, 562 U.S. at 449–50.

D-17 In sum, Freborg was a private person, leveling an allegation of private conduct at a

private event, against a person with whom she had a personal relationship, all on her

personal Facebook page—a page with no history of discussing issues of sexual violence.

Consistent with the animating principle from the Supreme Court, we should not apply the

actual malice standard to Freborg’s speech because it does not fall within the central

purpose of the First Amendment. The majority disagrees, but it has not cited a case where

a court has applied the constitutional actual malice standard to speech where a private

individual accuses an identified person of a crime in a private social media post that

includes a hashtag. 12 Considering the form, content, and context of Freborg’s speech, I

12 The majority describes Fredin v Middlecamp, as “a recent defamation case with similar facts.” See supra at 18 (citing 500 F. Supp. 3d 752, 777, 798 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021) (per curiam) (unpublished)). But in Fredin, two defendants had secured harassment restraining orders against the plaintiff and a third defendant reported about those harassment restraining orders on a social media account. 500 F. Supp. at 760; see Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) (concluding that the First Amendment precludes states from imposing civil liability based on the publication of true information in public, official court records); Quigley v. Rosenthal, 327 F.3d 1044, 1060 (10th Cir. 2003) (noting that “the existence of a civil lawsuit” is a “relevant factor” to reviewing whether speech concerns a matter of public concern). The social media account in Fredin was generally dedicated to addressing “subjects of online and real life misogyny, harassment, [and] rape culture.” Fredin, 500 F. Supp. 3d at 770 (internal quotation marks omitted). And the media reported on the social media posts. In short, Fredin is a markedly different case in that it involved accusations made in public judicial proceedings that were reported in the media. Here, by contrast, the accusations are made in a personal social media post. The anti-SLAPP cases that the majority relies on likewise do not compel the result majority reaches. See Fells v. Serv. Employees Int’l Union, 281 A.3d 572, 581 (D.C. App. 2022) (noting a statutory definition for public interest); Goldman v. Reddington, No. 18- CV-3662RPKARL, 2021 WL 4099462 (E.D.N.Y. Sept. 9, 2021); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900 (D. Or. 2020); Coleman v. Grand, 523 F. Supp. 3d 244 (E.D.N.Y. 2021). Although these laws incorporate the constitutional standard under the First Amendment to some extent, anti-SLAPP laws are state statutes, and cases interpreting state statutes are distinguishable on that ground alone. See, e.g., Fells, 281 A.3d at 581 (noting

D-18 would hold that her speech is not a matter of public concern. See Kristofek v. Vill. of Orland

Hills, 832 F.3d 785, 794 (7th Cir. 2016) (“While none of the three factors is dispositive,

content is the most important.”).

Ultimately, as we have recognized, the question of public concern is based on the

totality of the circumstances, and the purpose of the analysis is to balance the state’s interest

in preserving a cause of action for damages to reputation against preserving speech the

First Amendment values. Maethner, 929 N.W.2d at 881; Gertz, 418 U.S. at 343–44. One

of the circumstances that must be considered is the consequences of embracing the broad

hashtag rule that the majority writes. See Snyder, 562 U.S. at 452 (explaining that “the

boundaries of the public concern test are not well defined” and that the form, content, and

context test and standards articulated by the Supreme Court are “guiding principles”

that the statute “defines ‘[i]ssue of public interest’ as ‘an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place.’ ”); Coleman, 523 F. Supp. 3d at 259 (explicitly stating that New York law defines public concern broadly, as “a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants” (citation omitted) (internal quotation marks omitted)). These cases do not purport to interpret the First Amendment and are therefore not helpful here. Moreover, many of these cases involve direct criticism of government actors or public persons, making the speech at issue in these cases akin to that at issue in New York Times. See Goldman, 2021 WL 4099462, at *4 (also applying New York’s broad definition of “matter of public concern” and noting that the defendant’s speech included “extensive criticism of the law enforcement investigation of her sexual-assault complaint”); Dosset, 472 F. Supp. 3d at 908 (explaining that the speech at issue concerned “alleged workplace misconduct by the highest-ranking legal officer of the oldest and largest organization of American Indian and Alaska Native tribal governments”); Fells, 281 A.3d at 584 (concluding that plaintiff was a public figure because he “voluntarily thrust” himself into the debate on sexual harassment as the workplace as “interim President of the National Fast Food Workers’ Union”).

D-19 (citation omitted) (internal quotation marks omitted)). Applying the majority’s rule, any

speech that includes a hashtag is a matter of public concern and subject to the heightened

actual malice standard. This is troubling. 13

Minnesota has a long and deep history of recognizing and protecting reputational

interests. See Maethner, 929 N.W2d at 875 (“We have recognized that ‘personal reputation

has been cherished as important and highly worthy of protection’ throughout history.”

(quoting Jadwin, 367 N.W.2d at 491)). The reasons for protecting reputational interests

extend beyond financial compensation, because defamation can also cause “personal

humiliation, and mental anguish and suffering.” See Time, Inc., 424 U.S. at 460; see also

Richie, 544 N.W.2d at 28 (“[E]motional damages are not compensable absent harm to

reputation.”). We should not be so quick to abandon this history.

Important in our consideration of Minnesota’s history of protecting reputational

interests is an acknowledgement that false accusations of rape and sexual assault have been

used as a weapon to damage reputation and sometimes—even in recent history—resulted

in death or wrongful imprisonment. 14 See Mark Curriden & Leroy Phillips, Jr., Contempt

13 For example, under the majority’s rule of law, a father who accuses the mother of his children of child abuse on social media using #FathersRights in his post would have the benefit of the actual malice standard. 14 The majority suggests that reputational interests are less important in the context of sexual assault allegations because “research shows that these types of false accusations of sexual assault are rare.” Supra at 23 n.9. Then the majority cites to Caitlin K. Ceryenka & Christine M. Crow, Lawyering in the #MeToo Era, 109 Ill. B.J. 30, 31 (2021) for the proposition that “while false allegations of sexual violence do occur, they are rare; studies have shown that the rate of false allegations is between 2 and 10 percent.” In turn, Ceryenka & Crow cite to David Lisak et al.’s article False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318 (2010).

D-20 of Court 36, 166 (1999) (discussing historic inequality in discussion and prosecution of

rape); Hon. Victoria A. Roberts, The Scottsboro Boys, 80 Mich. Bar J. 62, 62–64

(explaining that, in 1931, nine young Black men were falsely accused of raping two white

women on a train; eight of the boys were tried and sentenced to death); Alexander v.

Oklahoma, 382 F.3d 1206, 1211–12 (10th Cir. 2004) (discussing the Tulsa Race Riot, a

24-hour riot in 1921 that left as many as 300 people dead and was prompted by a rumor

that a Black man assaulted a white woman); Julianne McShane, Stanford University

Employee Charged with Making 2 False Sexual Assault Allegations, NBC News (Mar. 16,

2023, 3:02 PM), https://www.nbcnews.com/news/crime-courts/stanford-university-

employee-charged-making-2-false-sexual-assault-all-rcna75264 (discussing a complaint

that alleged the defendant “twice made false accusations of rape against someone matching

Lisak et al. conducted a review of the number of women who falsely reported sexual assaults to the police at “a major university in the Northeastern United States” and concluded that approximately 6 percent of the cases reported to police were demonstrably false. Lisak at 1327, 1329–30. Lisak went on to conclude that a fair estimate of the number of false reports of sexual assault made to police was somewhere between 2 and 10 percent. Freborg’s Facebook post is not akin to a report to a police officer. Id. at 1330. A person reporting sexual assault to a police officer faces more barriers than someone posting to Facebook, and presumably expects an investigation. Thus the majority’s assertion that “false accusations are rare” and therefore unimportant is unsupported by any relevant citation. More to the point, even accepting that false reports may be uncommon, the infrequent nature of false report crimes does not diminish the importance of preserving a civil action to protect reputational interests when falsely reported crimes do occur. This is particularly so if the truth or falsity of the allegation is an element of the cause of action. I have faith in the ability of Minnesota juries to carefully consider defamation cases involving accusations of sexual violence. We do not need to extend First Amendment protection to all speech accusing anyone of a crime that uses a hashtag. As discussed above, the Supreme Court’s First Amendment precedent does not command the majority’s result, and we should be cautious in adopting such a sweeping rule of law.

D-21 the description of a Black male co-worker”); see also Samuel R. Gross et al., Race and

Wrongful Convictions in the United States 2022, Nat’l Registry of Exonerations 18

(Sept. 2022) (“Two thirds of those misidentified rape defendants were Black men, most of

whom were misidentified by white victims.”); Amanda Holpuch, 4 Black Men Exonerated

in False Case of Rape in ’49, N.Y. Times, Nov. 23, 2021, at A15 (noting that four Black

men were falsely accused of rape in Florida in the late 1940’s, and that one was killed by

a mob and one was fatally shot by law enforcement). 15

It is also important to recall that the constitutional actual malice standard was born

out of concern for chilling speech about government, speech that is essential to the vibrancy

of our democracy. 16 New York Times, 376 U.S. at 265–83; Maethner, 929 N.W.2d at 877–

78. Freborg’s accusation that Johnson raped her comes nowhere close to such speech. And

a consequence of the majority’s hashtag rule will likely be more posts like hers—posts

accusing others of violence and bad behavior. In some circumstances, posts on social

media that single out and accuse others of wrongdoing go by another name: cyberbullying.

15 None of this analysis is intended to suggest that Freborg herself is lying. I agree with the majority that the truth or falsity of Freborg’s statements is a question for the jury. I share this history only to emphasize that the State’s interest in protecting reputation is serious—it can have life-or-death and life-or-liberty consequences. Accordingly, we ought to proceed with caution in extending First Amendment protection to statements that accuse others of crimes. 16 I agree with the majority that sexual assault and sexual violence are societal problems and that crimes of violence against women are underreported. What I fail to see is why this problem requires us to extend additional First Amendment protection to Freborg’s Facebook post accusing a particular person of a particular instance of sexual violence. The majority’s statistics show that crime happens; the statistics do not show that speech about rape, sexual assault, and sexual violence are uniquely entitled to First Amendment protection.

D-22 See What Is Cyberbullying, stopbullying.gov, https://www.stopbullying.gov/cyber

bullying/ what-is-it (last updated Nov. 5, 2021) (“Cyberbullying includes sending, posting,

or sharing negative, harmful, false, or mean content about someone else. It can include

sharing personal or private information about someone else causing embarrassment or

humiliation.”). We should not lightly open the floodgates for more speech like this—

especially because one in five teenage girls experience cyberbullying, and medical experts

agree that cyberbullying is one of several factors contributing to a mental health crisis

among teenagers. Azeen Ghorayshi & Roni Caryn Rabin, Teen Girls Report Record Levels

of Sadness, N.Y. Times, Feb. 14, 2023, at A16; see also The Relationship Between Bullying

and Suicide, CDC (Apr. 2014) (discussing the link between bullying and adolescent mental

health). Earlier this year, the U.S. Surgeon general noted a need for greater protections for

children, including government regulations on social media companies. See U.S. Surgeon

General, Social Media & Youth Mental Health: The U.S. Surgeon General’s Advisory,

U.S. Dep’t of Health and Hum. Servs. (2023). By extending broad First Amendment

protection to Freborg’s Facebook post—and especially by basing this extension primarily

on the use of hashtags—the majority unnecessarily restricts the government’s ability to

address the growing cyberbullying crisis. Cf. New York Times, 376 U.S. at 277 (“What a

State may not constitutionally bring about by means of a criminal statute is likewise beyond

the reach of its civil law of libel.”).

This is not to say that Freborg’s speech should be left entirely unprotected—and it

is not. Historically, a defendant in a defamation per se case needed to prove that the

statements at issue were true. See Matthew L. Schafer, In Defense: New York Times v.

D-23 Sullivan, 82 La. L. Rev. 81, 114 (2021) (“While the rule prevailing at common law was

that even truth was no defense to a libel, . . . cases show early courts realizing that for a

republican government to be successful, some of the more draconian aspects of libel law

had to be relaxed.”). The burden now rests with the plaintiff to prove falsity. Richie,

544 N.W.2d at 25. And, consistent with Gertz, even in the context of defamation per se,

the plaintiff must prove that the defendant was negligent in making the defamatory speech.

See Gertz, 418 U.S. at 347 (“[S]o long as they do not impose liability without fault, the

States may define for themselves the appropriate standard of liability for a publisher or

broadcaster of defamatory falsehood injurious to a private individual.”); Jadwin,

367 N.W.2d at 492 (adopting a simple negligence standard in response to Gertz). In other

words, Johnson must prove that Freborg’s accusation was false and that Freborg did not

act with reasonable care when she falsely accused him of sexually assaulting her.

Based on the totality of the circumstances here, I would hold that the actual malice

standard does not apply to Freborg’s speech. Freborg posted on her personal Facebook

account that a person she identified by name raped her. Freborg and Johnson knew each

other personally, they first met through a personal hobby, they had a personal and private

sexual history, and the speech at issue here accuses another of a crime. The mere fact that

Freborg made these allegations amid a social movement and included #MeToo in her post

D-24 does not convert her otherwise private speech into speech on a matter of public concern

entitled to heightened First Amendment protection. Accordingly, I dissent.

ANDERSON, Justice (dissenting).

I join in the dissent of Chief Justice Gildea.

HUDSON, Justice (dissenting).

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